Running Head: EMPLOYMENT DISCRIMINATION

Opal Ruiz

Environment of Business

International College of the Cayman Islands

Professor Lancelot Barnes

June 20th 2017

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Abstract

Discrimination in relation to employment and discrimination within the workplace has been a

significant area of concern for minority groups for ages. Due to this, employment discrimination

has been of primary importance for all stakeholders involved including employers, employees,

and governments alike. The precarious history of racial discrimination in the United States has

resulted in the U.S. civil rights movement as well as advancements for other impacted minority

groups. Subsequently, the civil rights movement has led to revolutionary reform via the

enactment of various legislations for the protection of minority groups on the basis of race, color,

ethnicity, religion, sex, and national origin. Civil rights and employment discrimination

legislation have resulted in the creation of pertinent concepts including disparate treatment,

disparate impact, affirmative action and related postures. Consequently, concepts relating to the

civil rights movement, employment discrimination legislations, disparate impact, disparate

treatment and affirmative action will continue to be important stakeholder issues and will be

frequently discussed throughout this research paper.

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Employment Discrimination and Affirmative Action

Introduction

Discrimination in employment is a central stakeholder issue and has continued to

represent significant interests and concerns for a multitude of stakeholders including employees

and their families, employers, politicians, governments and the wider society. This research

paper seeks to provide an in-depth historical account of the U.S. civil rights movement and

minority progress (women's rights). Furthermore, the purpose of this exploratory research paper

is to provide a comprehensive account of central internal stakeholder issues including

discrimination and its impacts, federal anti-discrimination legislations, and affirmative action and

related postures. Issues related to employment discrimination in regards to race, color, age,

gender, religion, disability, and sexual orientation will also be evaluated. Additionally, the

essentials and implications of the U.S federal discrimination laws will also be discussed.

Moreover, the expanded forms of employment discrimination disparate treatment and disparate

will also be covered. Lastly, affirmative action will also be discussed as one of the initial

mechanisms for addressing employment discrimination.

Chronicle of U.S civil rights movement & minority progress

Chronicle the U.S civil rights movement

Segregation now, segregation tomorrow, segregation forever (Wallace, 1963). These are

the sentiments of George Wallace the then Governor of Alabama in 1963 (Aiken, Salmion, &

Hanges, 2013). In his 1963 inaugural speech, Governor Wallace affirmed his backing for

continued segregation based on race (Aiken et al., 2013). His behavior is a reflection of hundreds

of years of long-standing and institutionalized discrimination against African Americans which

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commenced with the initial importation of African slaves to British colonies (Aiken et al., 2013).

Jones (1977) reports that the leader of the Brotherhood of Sleeping Car Porters, A. Phillip

Randolph initiated a March on Washington in an effort to protest for discrimination based on

race in the defense industry. As a consequence, President Theodore Roosevelt issued Executive

Order 8802 in 1941 which supported complete participation in the country's national defense

program by all U.S citizens; irrespective of their color, creed, race, or national origin, the thus

the EEO enforcement agency and FEPC Fair Employment Practice Committee was also

established (Aiken et al., 2013).

The civil rights movement started to gain caption during the Cold War as many criticized

America's commitment to freedom (Dudziak, 1999). Furthermore, World War II created more

criticism of racial discrimination in the U.S as many wondered how the U.S could oppose Axis

powers while they denied rights to their own citizens, particularly as many African American

men joined the still-segregated armed services (Cashman, 1991). However, a significant

disadvantage to segregation occurred with the Supreme Court's decision in the Brown vs. Broad

of Education (1954) case, in which Thurgood Marshall lawyer for the NAACP successfully

argued against the "separate but equal" which was implemented as a result of the Plessy vs.

Ferguson case in 1996 (Aiken et al., 2013).

Although this victory was celebrated by African Americans, White Citizen grassroots

councils increased in the South, promising to uphold segregation, and an alliance between

Sothern Democrats and Republicans in 1956 initiated the Sothern Manifesto to defend states'

rights to reject desegregation (Cashman, 1991). According to Aiken el al. (2013), the civil rights

movement continued to advance as African Americans continued to challenge segregation by

demonstrating mass anti-segregation protests. After the arrest of Rosa Parks, the Montgomery
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Bus Boycott was organized which grew into a lengthy battle against segregation in the public

transport system (Aiken et al., 2013). As stated by Riches (2004) the boycott grew to include

other cities, and Martin Luther King, Jr. arose as a leader of peaceful civil rights protests.

According to Aiken et al. (2013) in 1957 the effort to desegregate Little Rock Central

High School in Arkansas brought heightened attention on civil rights due to nine African

American students attempting to enter the segregated school. The Governor of Arkansas Orval

Faubus summoned the Arkansas National Guard to block the African American students from

entering the high school; however, President Dwight Eisenhower enlisted the 101st Airborne

Division of the US armed forces to safeguard the students (Aiken et al., 2013). This significant

support for civil rights from the government enraged segregationists, who reacted with attacks

and threats against those who supported the civil rights movement (Cashman, 1991). However,

as stated by Aiken et al. (2013), the first civil rights bill since Reconstruction, the Civil Rights

Act of 1957 was filibustered by Strom Thurmond senator for South Carolina. However, the law

eventually passed although a significant portion of its original content was removed.

As mentioned by Aiken et al. (2013), in the 1960's the civil rights movement continued

with increase protests. During the early 1960's African Americans conducted sit-ins in

approximately (80) eighty communities (Oppenheimer, 1989); this aspect of the civil rights

movement signaled the younger generation's involvement in the struggle for civil rights and

equality (Aiken et al., 2013). Sit-ins in Nashville, North Carolina involved more than 500

students, which accomplished integration in the placement of African American employees in

non-menial work roles as well as integration at city lunch counters (Riches, 2004). Civil rights

continued to advance after President John F. Kennedy was elected as he supported civil rights via

an executive action as opposed to legislative changes (Aiken et al., 2013). Further to this, in 1961
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President Kennedy issued Executive Order 10925 to foil discrimination in the workforce by

implementing the President's Committee on Equal Employment and heightening contractor

accountability of discrimination issues (Aiken et al., 2013). The president's executive order

mandated that government contractors avoid discriminatory procedures and implement

affirmative action to make sure that job applicants were treated fairly regardless of their creed,

color, race, or national origin (Aiken et al., 2013).

According to Wright (2005) after a series of mass protests by African Americans and

resulting violent responses by opponents, in the summer of 1963, President Kennedy positioned

the beginning phases for the civil rights bill via a sequence of public speeches and appearances.

As mentioned by Burnham (2015) Congress continued to debate on the bill, as thousands

gathered for the March on Washington at the Lincoln Memorial on August 28th, 1963 with a list

of demands such as civil rights legislation conferring to the Attorney General to request

protection for the civil rights of African Americans. Shortly after committing to fulfill the Civil

Rights Act, President Kennedy was assassinated (Aiken et al., 2013). As mentioned by Aiken et

al. (2013), although Kennedy unfailingly advocated for civil rights, there was not much known

about support for civil rights from his successor, President Lyndon B. Johnson.

However, in spite of this ambiguity, the impact of Kennedy's assassination on the civil

rights movement was short lived as in honor of Kennedy; President Johnson initiated the passage

of the Civil Rights Act on November 27th, 1963 (Wright, 2015). According to Jones 1977, the

Civil Rights Act modified Title VII by including smaller employers and local and state

governments under the domain of the EEOC. Additionally, the Civil Rights Act also enabled the

EEOC with unwavering enforcement authority thereby implementing the EEOCC, Equal

Employment Opportunity Coordination Council which was responsible for effectively carrying
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out enforcement objectives (Aiken et al., 2013). Nonetheless, in 1977 when President Jimmy

Carter was elected, the EEOC was often critiqued for lack of organization, lack of credibility,

and backlogs of unresolved cases (Zuckerman, 2011).

As reported by Aiken el al. (2013) the Civil Rights Reform Act of (1978) established the

EEOC as the primary federal agency of employment enforcement with the responsibility for

ensuring that employers adhere to Tile VII, the Age Discrimination in Employment Act, the

Equal Pay Act, in addition to providing Equal Employment Opportunity for Federal workers.

Furthermore, there would later be collaboration between the EEOC and the Department of

Labor, the Civil Service Commission, and the Department of Justice (Aiken et al., 2013). Apart

from improving the power and authority of the EEOC, President Carter also utilized various

appointment to exhibit his support for civil rights (Shull, 1991). In particular, President Carter

increased the quantity of African American judges on the federal level from by 5% between

1977 and 1981, as only 4% of African-American federal judges in 1977 which improved to 9%

in 1981, further to this, President Carter also appointed two African American women in cabinet

positions (Riches, 2004).

As mentioned by Aiken et al. (2013), in the 1990 civil rights continued to advance with

the issue of an executive order from President Bill Clinton. President Clinton strongly supported

affirmative action and he was very vocal is his opposition to racism (Shull, 1999). According to

Shull (1999), Clinton placed significant emphasis on the importance of diversity in the

workforce, a position which he also practiced with the appointment African Americans and

women in the judicial system as well as his cabinet appointments. Furthermore, President

Clinton also issued Executive Order 13050, which implemented a Presidential Advisory Broad
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on race, although reports from the broad were later critiqued by both the Democrats and the

Republicans (Shull, 1999).

According to Aiken el al. (2013), other significant issues surrounding racial equality also

advanced during the first ten years of the 21st century. Namely, the victory of Barack Obama as

the first elected African-American President in the United Stated was viewed by many as the

fulfillment of Martin Luther King Jr.'s dream of a nation of equality as well as the inauguration

of a "post-racial" age (Ward, 2011). In 2009, indeed President Obama enacted into law the Lily

Ledbetter Fair Pay Act, which served as an amendment to the Civil Rights Act which stated that

the statute of limitations starts over as each discriminatory salary is received (Aiken et al., 2013).

Oddly enough, the election of Obama as the President might have resulted in less support for

affirmative action policies as one study showed that after his election, individuals were less

likely to confer that racism was an issue in the U.S or to give their support for diversity

initiatives and affirmative action policies to address racial inequality (Kaiser et al. 2009).

Chronicle of Women's Rights Movement

As stated by Aiken et al. (2013), similar to the civil rights movement by African

Americans, strides for improving gender equality began long before the passage of the Civil

Rights Act. The initial stage of American feminism started in 1948 with the Seneca Falls

Convention in New York, which brought about a declaration of outlined grievances by women

which then paved the way for the women's rights movement (Aiken et al., 2013). As stated by

Aiken et al. (2013) these initial efforts to enhance women's position in the society far surpassed

voting rights alone. For example, the WCTU, Women's Christian Temperance Union, advocated

for legislation to defend women and children as it relates to child labor and education (Moon,
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2011). Furthermore, Aiken el al. (2013) states that in the late 1800s and the early 1900s there

were various other social feminist movements to safeguard women from workplace abuses.

A Gallop Poll in 1946 found that 80% of Americans believed that women should not

work if their spouse were employed (Weatherford, 1997). Nonetheless, Berkeley (1999) and

Moon (2011) states that activists for women's rights continued to be active after the war had

ended by creating unions with women who had transitioned into female-type employment

including retail, telecommunications, and food service as well as advocating for equal pay rights.

Even with pressures for women to hold traditional gender roles, the women's rights movement

continued to advance in the 1950's and 1960s (Aiken et al., 2013). In 1960 changes also

surfaced in relation to norms in women's reproductive health, ultimately climaxing with federal

authorization of the birth control pill (Aiken et al., 2013).

According to Aiken el al. (2013), although significant social advancements in gender

equality came into effect after World War II, advancement was not as quick on the legal side. As

stated by Aiken el al. (2013), in 1957 the U.S Congress implemented the Civil Rights

Commission, though; the commission was primarily focused on racial issues. It was almost

another ten years for the Civil Rights Commission to see gender equality as an area that was

enforceable under civil rights (Weatherford, 1997). Aiken el al. (2013), reports that women were

still subjected to various protectionist policies and laws, such as limited working hours per week

and prohibitions on working at night. Further to this, women were primary consigned to low-

paying, low status, and traditionally feminine roles (Kleinberg, 1999). Moreover, gender

inequality in the workforce had detrimental economic impacts on women (Aiken et al., 2013).

Research from Berkeley (1999), states there was significant pay inequality based on gender as

women earned 58 cents for each dollar earned by their male counterparts. Furthermore, gender
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inequality was also prevalent in education; in the 1950's, the percentage of women in higher

education was less than at any point since the 1870's (Kleinberg, 1999).

As mentioned by Aiken el al. (2013), notwithstanding continuous opposition for women's

right, changes in the legal landscape in support of women's rights progressed under the Kennedy

administration. President John F. Kennedy created the first Presidential Commission on the

Status of Women which was led by Eleanor Roosevelt in 1961 (Aiken et al., 2013).

Additionally, Congress enacted the Equal Pay Act in 1963, which made it illegal to discriminate

on employee's salary based on their gender (Aiken et al., 2013). According to Berkeley (1999),

the Equal Pay Act paved the way for future changes in the legal system with regards to gender

equality in the workforce. However, it was ineffective, and it was a challenge to enforce

(Berkeley, 1999). In addition, during this same time frame, the women's rights movements were

further invigorated by The Feminine Mystique (Aiken et al., 2013). The book was authored by

Betty Fariedan and was a prominent book which highlighted the effect on women about

traditional gender roles and the unexpressed but deep sadness of women in such roles (Aiken et

al., 2013).

According to Aiken et al. (2013), during the early 1900's, the second phase of feminism

ended, and subsequently, the third phase of feminism started, emphasizing petrification of

younger feminist along with support for pluralism. During this period, women began to become

more noticeable in government positions (Aiken et al., 2013). As reported by Aiken el al.

(2013), twenty-four women were appointed to the House of Representatives in 1992.

Subsequently, 1992 was known as the "Year of the Women, and President Bill Clinton hired

more women to high office than any other prior president. During his initial two years as

president, Clinton elected minorities and women to 58% of his judicial positions (Wright, 2000)
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and more than 30% of his initial appointees were women (Shull, 1999). Moreover, Aiken el al.

(2013), states that advancements in women's rights, such as increased representation in politics

continued to improve over the late 1990s and 2000s steadily. In this regard, in 2007 Nancy Pelosi

was appointed as the first female Speaker of the House of Representatives, and in 2008 Hillary

Clinton was the first women to secure a presidential primary in 2008 (Aiken et al., 2013). More

recently, Hillary Clinton was also the first women to run for the U.S Presidential elections in

November 2016, although Donald Thump succeeded her.

Therefore, the passage of the Civil Rights Act was a strong and momentous victory for

civil rights as substantiated by the continuous increase in racial and female minority employment

(Aiken et al., 2013). Not only was the passage of the Civil Rights Act a triumph in itself,

however, it also functioned as a tool for change on behalf of marginalized groups such as African

Americans and women to have the opportunity to secure equal employment opportunities (Hall

2005 & Minchin, 1999).

Outline of the federal discrimination laws

Age Discrimination in Employment Act of 1967

Between 1946 and 1965 there were seventy-five million individuals born and these

people are known as the "baby boomers"; these people are having a severe impact on

employment statistics (Lewis, 2013). Consequently, roughly 69 million American employees are

over the age of forty in the workforce (Lewis, 2013). According to Lewis (2013), there are

approximately 45.3% in the private sector labor force that is between the ages of forty and sixty-

one. However, this percentage is significantly higher for the federal workforce where 64.1% of

employees are between the ages of forty and sixty-one (Lewis, 2013). It is important to note that
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in both cases the percentages of workers between these ages are substantially greater than what

they were ten years ago (Lewis, 2013). Furthermore as mentioned by Lewis (2013), as the

average age of the American workforce continues to increase, so does the pervasiveness of

discrimination based on age in the workforce. In light of this, 2007 and 2008, saw a 30% rise in

age discrimination suits taken against organizations in the U.S (Lewis, 2013).

According to Lewis (2013), methods for protecting employees against employment

discrimination based on age is becoming more and more important as its relevance now provides

coverage for a greater number of employees. An important measure for protecting and

preventing discrimination based on age is known as the Age Discrimination in Employment Act

(ADEA) (Lewis, 2013). As mentioned by Lewis (2013), the purpose for the enactment of the

ADEA was to endorse or support the employment of older persons, not based on their age but

their ability. To prevent arbitrary age discrimination in the workforce and to enable employees

and employers find solutions for issues ascending from the effect of age on employment (Lewis,

2013). As stated by Lewis (2013), the implications of the Age Discrimination in Employment

Act are extensive. Following research from Lewis (2013), the ADEA indicates that it is illegal

for an employer to refuse to or fail to employ or hire an individual or discriminate a person any

shape of form in regards to his / her employment due to age.

As previously mentioned the statue that is geared toward the battle on discrimination

based on age is the ADEA (Lewis, 2013). The ADEA was enacted in 1967 and the act has served

as a protection against age discrimination in the U.S labor force for over fifty years (Lewis,

2013). As reported by Lewis (2013), the Age Discrimination in Employment Act applies to all

companies that have over twenty employees. The ADEA is also applicable to state, federal and

local governments and also makes it illegal for employers to discriminate employees age forty or
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older (Lewis, 2013). The ADEA prohibits age discrimination due to age in regards to any

condition, term, or privilege of employment including training, benefits, compensation, hiring,

promoting, firing, laying off, as well as job assignments (Lewis, 2013). According to Lewis

(2013), different parts of the ADEA apply to various types of organizations. As an illustration,

section 623 which is also known as the non-federal provision applies to all non-federal

employers whereas section 633 which is also referred to as the federal provision is applicable

exclusively to federal employers (Lewis, 2013).

Pregnancy Discrimination Act of 1978

According to Marcum and Perry (2015), the Pregnancy Discrimination Act of 1978

(PDA) was enacted by U.S. Congress to relieve the challenges faced by women in the workforce

compared to males in as it relates to pregnancy and pregnancy induced medical issues. The PDA

served as a revision to the Title VII of the Civil Rights Act of 1964 to confirm that gender

discrimination also encompassed pregnancy discrimination (Marcum & Perry, 2015). As stated

by Marcum and Perry (2015) in particular, the PDA makes it illegal for employers to

discriminate based on pregnancy, childbirth, or pregnancy-induced medical issues as well as

women impacted by pregnancy, childbirth, or pregnancy-related medical problems and that

women affected by such conditions. The PDA states that pregnant employees and should be

treated in an equal and fair manner in that same way that other employees are treated for all

employment purposes (Marcum & Perry, 2015). The PDA protects employment benefits

including fringe benefit policies, as well as in the same way that other employees are treated who

are not impacted but alike in their inability or ability to carry out work duties (Marcum & Perry,

2015).
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According to Marcum and Perry (2015), the PDA explicitly provides protection for

women who are impacted by pregnancy, childbirth, or associated medical conditions. Therefore

pregnant employees must be treated in the same manner for all employment purposes as other

individuals who are not affected by pregnancy but that their condition is similar in their inability

or ability to undertake their job duties. However, it is important to note that the PDA does not

provide protection from pregnancy employees being terminated for being absent from work even

in cases where such absences are due to pregnancy or pregnancy-related medical complications

unless absences of other non-pregnant employees are disregarded (Marcum & Perry, 2015).

Further to this, the PDA does not mandate that employers provide preferential treatment to

employees that are pregnant (Marcum & Perry, 2015). However, as mentioned by Marcum and

Perry (2015), some individuals perceive that an accommodation by the organization for

employees that are pregnant constitutes to preferential treatment.

According to Buchholtz and Carroll (2012), additional federal discrimination legislations

include the Equal Pay Act of 1963, the Lilly Ledbetter Fair Pay Act of 2009, the American with

Disabilities Act, and lastly the Civil Rights Act of 1991. Buchholtz and Carroll (2012) states that

the Equal Pay Act of 1963 prohibits discrimination concerning the salary/wages of females and

males who carry out equal work in the same organization. Additionally, the Lilly Ledbetter Fair

Pay Act of 2009 is an extension of the Equal Pay which effectively undid the provision which

stipulated that the discrimination clock reset at each time that a discriminatory salary was

received (Buchholtz & Carroll 2012). Another, significant federal discrimination legislation is

known as the Americans with Disabilities Act (ADA) of 1990. As indicated by Buchholtz and

Carroll (2012), The Americans with Disabilities Act (ADA) of 1990 was amended in 2008 and
EMPLOYMENT DISCRIMINATION 15

prohibits discrimination on the basis of physical or mental disabilities in the private sector,

public accommodations, and also includes that employers provide communication and

transportation systems to facilitate access for disabled persons. Lastly, the Civil Rights Act of

1991 was enacted to provide improved financial damages in cases of intentional discrimination

as it relates to race, religion, disability, and national origin (Buchholtz & Carroll 2012).

Issues in employment discrimination:

Religion, sexual orientation, race & ethnicity, color, gender

Religion

According to Buchholtz and Carroll (2012) religion in the workplace creates challenges

due to the increased diversity the population which results in a greater number of employees with

unfamiliar religions whereby creating challenges for employers in managing employee

expectations. In consonance with research from Ludlum (2016) employment discrimination

relating to religion is a notion that requires the government to provide provisions for freedom of

religion; however, it also required that the government provide protection for employees who are

mistreated as a result of their faith or religious affiliation. In this regard, the U.S Congress

enacted the Title VII Civil Rights Act of 1964, which prohibits discrimination based on religion

in the workforce (Ludlum, 2016). According to Ludlum (2016), Title VII makes it illegal for

harassment or disparate treatment of employees as a result of their religious practices or beliefs

(or lack thereof), it also made it illegal for employers to deny reasonable accommodation for

religious practices or beliefs, as well as employer retaliation thereof.

Sexual orientation
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There are various issues in employment discrimination as it relates to one's sexual

orientation. As mentioned by Badgett et al. (2007) sexual orientation is commonly associated

with being lesbian, gay, bisexual, transgender or queer (collectively referred to as LGBTQ), such

individuals experience prejudice and discrimination in the workforce. According to Gates

(2011), employment discrimination legislation at the federal level to provide exclusive protection

from discrimination in the workplace as a result of one's sexual orientation has been futile over

the last 30 years. Nonetheless, discrimination protections for gay employees have obtained the

attention of influential politicians (Gates, 2011). Moreover, outgoing U.S President Barack

Obama has previously communicated his backing for a federal Employment Non-Dissemination

Act (ENDA), and he also expressed that he feels that federal anti-discrimination legislations

should be extended to provide protection from employment discrimination in the areas of general

identity and sexual orientation (White House, 2011). As mentioned by Badgett et al. (2007)

approximately 68% of lesbian, gay, bisexual, transgender, and gay employees report that they

have experienced discrimination in the workplace. Furthermore, gay employees are not treated

equally in comparison to other employees as in some cases gay employees are denied basic

human rights in many organizations (Gates, 2011). In particular, these employed are deprived of

basic respect and dignity as the LGBTQ identity is often stigmatized and devalued in the

workplace and by society as a whole (Gates, 2011).

Race/ethnicity, color, and gender

Additionally, employment issues exist in regards to employment discrimination with

regards to age, gender, disability, race and ethnicity, and color (Buchholtz & Carroll, 2012). As

stated by Buchholtz and Carroll (2012) racial discrimination was the original type of

discrimination which resulted in the enactment of civil rights anti-discrimination laws and
EMPLOYMENT DISCRIMINATION 17

continued to be a significant issue in the workforce in the U.S as well as on a global scale.

According to Buchholtz and Carroll (2012), racial discrimination consists of discrimination on

based on physical, cultural, or ancestry features that are related to certain races including hair

texture, facial features or skin color. Similarly, color bias is a major area which presents issues in

the workplace (Buchholtz & Carroll, 2012).

It is vital to note that discrimination based on color can occur between individuals of the

same race or ethnicity of a different race or ethnicity (Buchholtz & Carroll, 2012). Hence,

discrimination based on color can be described as when individuals are discriminated against due

to the darkness, lightness, or other color characteristics of his/her skin (Buchholtz & Carroll,

2012). There are also issues relating to employment discrimination based on gender and sex

discrimination. Matters concerning gender discrimination in the workplace are primarily in

regards to women obtaining top management positions, equal pay for equal work, sexual

harassment issues, and taking maternity leave without the fear of retribution (Buchholtz &

Carroll, 2012). Further to this, as mentioned previously, there are also issues pertaining to

employment discrimination as it relates to sexual orientation and disability.

Disparate treatment and disparate impact

Disparate treatment

Disparate Treatment as implemented in 1964, Tile VII's primary nondiscrimination

policy held that employers are only held liable/accountable for disparate treatment (Civil Rights

Act, 1964). The disparate treatment policy states that it is illegal for an organization to refuse or

fail to hire or discharge an employee (Civil Rights Act, 1964). Additionally, disparate treatment

means that it is prohibited to discriminate against any employee concerning terms, privileges of
EMPLOYMENT DISCRIMINATION 18

employment, compensation, due to the employees color, race, sex, national origin or religion

(Civil Rights Act, 1964). This type of discrimination is committed in a case where an employer

treats an employee less favorably than other employees as a result of a trait protected under the

Civil Rights Act (Winrow & Schieber, 2010). For an employee to be successful in a disparate

treatment case, he/she must bear the burden of proving that the employer has a discriminatory

motive or intent for taking the action that is job-related (Watson, 1988). According to Winrow

and Schieber (2010), the Civil Rights Act of 1964 only outlawed acts of intentional

discriminatory actions or practices; however, it does not provide coverage for cases that involved

unintentional discriminatory practices and procedures which culminated in disparate impact. As

a consequence of this, the U.S Congress passed the Civil Rights Act of 1991 (Winrow &

Schieber, 2010).

Disparate Impact

According to Copeland and Schnake (2016), disparate impact occurs when an employee

with a trait protected under the Civil Rights Act is refused an employment opportunity as a result

of an impartial practice or requirement by an employer. The disparate impact provision states

that has an impartial hiring policy or standard which has a disparate impact on a particular group,

the court can strike out the policy or standard as being in violation of Title VII unless the policy

is directly tied to future job productivity (Severin, 2013). The utilization if disparate impact

serves as a legal provision against arbitrary, artificial and unwarranted barriers to employment

when such obstacles exist primarily to discriminate based on protected traits (Griggs v. Duke

Co., 1971). To be successful in a disparate impact case, the prospective applicant should be able

to identify a particular policy or practice which has a disparate impact on a group with traits that

are protected (Copeland & Schnake, 2016). As mentioned by Copeland and Schnake (2016) the
EMPLOYMENT DISCRIMINATION 19

Supreme Court holds that the statistical proof which is mandated in disparate impact cases must

meet rigorous standards. Furthermore, in disparate impact cases, it is required for the plaintiff to

identify and isolate the specific employment practices which are supposedly responsible for any

detected statistical disparities (Watson v. Fort Worth Bank & Trust, 1988).

Disparate Treatment vs. Disparate Impact

According to Buchholtz and Carroll (2012), disparate treatment and disparate impact

refer to two specific types of discrimination. Disparate treatment form of discrimination can be

defined as unequal treatment (Buchholtz & Carroll, 2012). As stated by Buchholtz and Carroll

(2012) disparate treatment can be defined as utilization traits such as color, race, religion, or

national origin as a basis for discrimination or for treating individuals unequally or unfairly. On

the other hand, disparate impact can be defined as having fewer people from minority groups

included in the outcome for recruitment and selection including hiring, testing, as well as

promotion policies than would be anticipated by a numerical amount (Buchholtz & Carroll,

2012). Disparate treatment and disparate impact both have factors which differentiate them from

each other.

In relation to disparate treatment, discriminatory actions are direct in nature, and it

impacts color, race, nationality or sex (Buchholtz & Carroll, 2012). Therefore, in disparate

impact, employees are discriminated against or treated unequally due to their color, race,

nationality or sex (Buchholtz & Carroll, 2012). As stated by Buchholtz and Carroll (2012) under

disparate treatment decisional rules are made based on the individual's race or sex. Furthermore,

discrimination under disparate treatment is intentional in nature and the actions are perceived as

prejudice (Buchholtz & Carroll, 2012). The standards of disparate treatment differ according to
EMPLOYMENT DISCRIMINATION 20

different groups of people (Buchholtz & Carroll, 2012). As an illustration, disparate treatment

occurs when employees are treated less favorable in comparison to other employees based on

their racial identity (Buchholtz & Carroll, 2012).

Conversely, under disparate impact the discriminatory action or practice is indirect

(Buchholtz & Carroll, 2012). In this case, the results and consequences are perceived as being

unequal (Buchholtz & Carroll, 2012). Therefore, in disparate impact, there are racial and sexual

consequences for the decisional rules (Buchholtz & Carroll, 2012). However, unlike disparate

treatment, the discrimination is unintentional (Buchholtz & Carroll, 2012). Additionally, the

actions of employers can be perceived as color-blind, impartial or neutral (Buchholtz & Carroll,

2012). In disparate impact, the standards are the same although there are varying results for

different groups of people (Buchholtz & Carroll, 2012). Furthermore, disparate impact can be

regarded as discriminatory practices which impact an entire group of employees or applicants

(Buchholtz & Carroll, 2012). Therefore, disparate treatment occurs when employees are treated

different or unequal in comparison to other employees in a similar situation (Buchholtz &

Carroll, 2012). Whereas disparate impact occurs when discriminatory practices such as hiring,

firing, promotion, compensation or other employment practices significantly impact on one

employee group over the other (Buchholtz & Carroll, 2012).

Affirmative action and affirmative action categories

Affirmative action overview

Pursuant to research by Thompson and Morris (2013), affirmative action procedures are

common as employers use such policies to seek and promote diversity in the workforce and also

to be in compliance with federal anti-discrimination legislation. In spite of the broad adoption of

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affirmative action policies, there is substantial controversy surrounding the utilization of

affirmative action policies (Crosby et al., 2003 and Kravitz et al., 1997). A significant portion of

the challenge in affecting affirmative action policies is as a result of the contrasting effects of

affirmative action policy requirements and federal non-discrimination employment legislation

(Thompson & Morris, 2013). According to Thompson and Morris (2013), affirmative action

policies extend pass non-discrimination as it consists of strategic efforts to improve the employee

ratio of the representation of minority groups. In some circumstances, these efforts may result in

preferential treatment of employees from minority groups or employees with protected traits

(Thompson & Morris, 2013).

As stated by Buchholtz and Carroll (2012) the underlying rationale for affirmative action

is the principle of compensatory justice. Furthermore, the principal objective of affirmative

action has become and remained controversial as it supposedly leads to reverse discrimination

(Buchholtz & Carroll, 2012). As stated by Thompson and Morris (2013), the contracting

requirements of non-discrimination and preferential treatment can result in employers finding

themselves in an impasse. However, without the use of distinctive consideration for employees

or applicants from minority groups, employers, particularly, an employer with a prior case of

discrimination may be incapable of achieving affirmative action objectives (Thompson &

Morris, 2013). On the other hand, if the employer provides too much preferential treatment to

employees and applicants from minority groups the employer may be guilty of committing

reverse discrimination (Thompson & Morris, 2013).

Passive nondiscrimination and pure affirmative action

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According to Buchholtz and Carroll (2012), there are four different variations of

affirmative action two of which can be described as "soft" or "weak" and the other two can be

described as "hard" or "strong". The affirmation action concepts which can be described as soft

or week consist of passive non-discrimination and pure affirmative action (Buchholtz & Carroll,

2012). As stated by According to Buchholtz and Carroll (2012) the concept of passive

nondiscrimination refers to treating all sexes and races in the same manner in regards to

compensation, promotion, and hiring. The issue with the passive nondiscrimination posture is

that it does not take into consideration that prior discrimination may mean that many potential

employees may not be aware of or may not be prepared for current opportunities (Buchholtz &

Carroll, 2012). On the other hand, pure affirmative action is in relation to an organized effort to

increase the applicant pool so that individuals are not left out due to current or prior

discrimination (Buchholtz & Carroll, 2012). This issue with this posture of affirmative action is

that the decision to hire or promote is based on the most suitably qualified applicant and hence

the decision has no bearing on the individual's sex or race (Buchholtz & Carroll, 2012).

Affirmative action with preferential hiring and hard quotas

According to Buchholtz and Carroll (2012), affirmative action postures which are

regarded as "hard" or "strong" are affirmative action with preferential hiring and hard quotas.

Affirmative actions with preferential hiring are in relational to increasing the applicant and labor

pool in addition to making strategically preferential decisions in regards to the hiring and

promotion of women and minority groups (Buchholtz & Carroll, 2012). As stated by Buchholtz

and Carroll (2012) affirmative action with preferential treatment could be classified as a "soft"

quota system. In contrast to affirmative action with preferential treatment hard quotas are in
EMPLOYMENT DISCRIMINATION 23

relation to strategically specifying proportions or numbers of individuals from minority groups

which must be hired (Buchholtz & Carroll, 2012).

Conclusion

In conclusion, the civil rights movement was the culmination of significant historical

events including non-violent, violent protest and activism which eventually lead to the passage of

the Civil Rights Act of 1964. The Civil Rights Act of 1964 paved the way for civil rights under

the basis that it was illegal to discriminate in regards to color, race, religion, sex, or national

origin. Further to this, various federal employment anti-discrimination laws were enacted

including the Equal Pay Act of 1963, the Americans with Disabilities Act of 1990, the Age

Discrimination Act of 1967, the Pregnancy Discrimination Act of 1978, and the Civil Rights Act

of 1991, among other federal discrimination legislations. Moreover, it is evident that there are

various issues in employment discrimination as it relates to race, color, national origin, sex, age,

disability, and sexual orientation. Furthermore, the concept and meaning of employment

discrimination were further expanded to encompass disparate treatment and disparate impact.

Also, affirmative action was created as one of the initial mechanisms for addressing employment

discrimination against minority groups. For years to come, these issues relating to employment

discrimination will continue to be significant areas of concern and interest for all stakeholders

involved including employees, employers, activist groups, politicians, and governments.

EMPLOYMENT DISCRIMINATION 24

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